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Chapter 21

Creating criminal offences

Part 1

What conduct is to be prohibited?

Legislation must precisely define the prohibited conduct.

People must be able to act in certain ways, or decide not to act in certain ways, and have a clear understanding of the legal consequences that might follow. It is therefore necessary to first consider exactly what conduct is being prohibited (called the actus reus) and how the conduct is connected with the harm caused.

In criminal proceedings, the prosecution must prove beyond reasonable doubt that the defendant committed the physical act. An imprecise statement of the prohibited conduct may lead to inconsistent enforcement of the law, uncertain application of the law, unintended changes in behaviour, or an acquittal.

It is undesirable to further penalise conduct where that conduct is already addressed in such a way (by criminal law or otherwise) that provides an appropriate level of punishment, denunciation, prevention, or deterrence.